[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Rules and Regulations]
[Pages 25596-25609]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10271]
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POSTAL SERVICE
39 CFR Part 233
Inspection Service Authority; Seizure and Forfeiture
AGENCY: Postal Service TM.
ACTION: Final rule.
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SUMMARY: The Postal Service is revising its regulations with regard to
forfeiture authority and proceedings. These new provisions implement
specific requirements in compliance with the Civil Asset Forfeiture
Reform Act (CAFRA) of 2000.
DATES: Effective date: May 31, 2012.
FOR FURTHER INFORMATION CONTACT: R. Emmett Mattes III, Chief Counsel,
U.S. Postal Inspection Service, 202-268-7732.
SUPPLEMENTARY INFORMATION: On February 27, 2012, the Postal Service
published with a request for comments a proposed revision of its
regulations with regard to forfeiture authority and proceedings (77 FR
11437-52). As explained in that notice, the proposed revision was
intended to implement specific requirements in compliance with the
Civil Asset Forfeiture Reform Act (CAFRA) of 2000, consistent with the
following goals:
(1) Consolidate the Postal Service's rules and regulations
regarding the seizure and forfeiture of property from four sections
into three, and include provisions governing remission or mitigation of
administrative, civil, and criminal forfeitures.
(2) Identify the scope of authority available to the Postal Service
to seize property for forfeiture, update definitions, and provide
procedures governing practical issues regarding the seizure, custody,
inventory, appraisal, settlement, and release of property subject to
forfeiture.
(3) Conform the seizure and forfeiture regulations of the Postal
Service to address procedural changes necessitated by CAFRA, and
incorporate CAFRA's innocent owner defense into the remission
regulations.
(4) Update the regulations to conform with other authorities and
current forfeiture practice.
(5) Modify the procedures governing petitions for remission or
mitigation of forfeiture, clarify the existing regulations pertaining
to victims, and make remission available to third parties who reimburse
victims under an indemnification agreement.
No comments were received in response to the publication of the
proposed rule, and the Postal Service has accordingly determined to
adopt the proposed revision to Part 233 without change.
List of Subjects in 39 CFR Part 233
Administrative practice and procedure, Crime, Law enforcement,
Penalties, Privacy.
Accordingly, for the reasons stated, the Postal Service amends 39
CFR Part 233 as follows:
PART 233--INSPECTION SERVICE AUTHORITY
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1. The authority citation for 39 CFR part 233 is revised to read as
follows:
Authority: 39 U.S.C. 101, 102, 202, 204, 401, 402, 403, 404,
406, 410, 411, 1003, 3005(e)(1); 12 U.S.C. 3401-3422; 18 U.S.C. 981,
983, 1956, 1957, 2254, 3061; 21 U.S.C. 881; Omnibus Budget
Reconciliation Act of 1996, sec. 662 (Pub. L. 104-208).
0
2. Section 233.7 is revised to read as follows:
Sec. 233.7 Forfeiture authority and procedures.
(a) Scope of regulations. (1) The regulations in this section apply
to all forfeitures administered by the United States Postal Service
with the exception of seizures and forfeitures under the statutes
listed in 18 U.S.C. 983(i). The authority to conduct administrative
forfeitures derives from the procedural provisions of the Customs laws
(19 U.S.C. 1602-1618) where those provisions are incorporated by
reference in the substantive forfeiture statutes.
(2) The regulations in this section will apply to all forfeiture
actions commenced on or after May 31, 2012.
(b) Designation of officials having administrative forfeiture
authority. (1) Administrative forfeiture authority. The Chief Postal
Inspector is authorized to conduct administrative forfeitures under the
statutes identified in paragraph (b)(2) of this section, following,
where applicable, the procedures provided by the customs laws of the
United States (19 U.S.C. 1602-1618) and to pay valid liens and
mortgages against property that has been so forfeited.
(2) Authority of the Chief Postal Inspector. The Chief Postal
Inspector is authorized to perform all duties and responsibilities
necessary on behalf of the Postal Service and the Office of Inspector
General to enforce 18 U.S.C. 981, 983, 2254; 21 U.S.C. 863(c), 881; and
31 U.S.C. 5317; following, where applicable, the procedures provided by
the Customs laws of the United States (19 U.S.C. 1602-1618), and to pay
valid liens and mortgages against property that has been so forfeited.
The Chief Postal Inspector is authorized to delegate all or any part of
this authority to Deputy Chief Inspectors, Inspectors in Charge, and
Inspectors of the Postal Inspection Service, and to issue such
instructions as may be necessary to carry out this authority.
(3) State adoption. The seizure of property by a state or local law
[[Page 25597]]
enforcement agency or other entity or individual may be adopted for
forfeiture by the Postal Inspection Service, as appropriate under its
seizure authority pursuant to paragraphs (b)(1) and (2) of this
section.
(c) Definitions. As used in this section, the following terms shall
have the meanings specified:
(1) Administrative forfeiture means the process by which property
may be forfeited by the Postal Inspection Service rather than through
judicial proceedings. Administrative forfeiture has the same meaning as
nonjudicial forfeiture, as that term is used in 18 U.S.C. 983.
(2) Appraised value means the estimated market value of property at
the time and place of seizure if such or similar property was freely
offered for sale between a willing seller and a willing buyer.
(3) Appropriate official means the Chief Postal Inspector or that
person's designee, or where the term ``appropriate official'' means the
office or official identified in the notice published or personal
written notice in accordance with paragraph (j) of this section.
(4) Contraband means:
(i) Any controlled substance, hazardous raw material, equipment or
container, plants, or other property subject to summary forfeiture
pursuant to sections 511(f) or (g) of the Controlled Substances Act (21
U.S.C. 881(f) or (g)); or
(ii) Any controlled substance imported into the United States, or
exported out of the United States, in violation of law.
(5) Civil forfeiture proceeding means a civil judicial forfeiture
action as that term is used in 18 U.S.C. 983.
(6) Domestic value means the same as the term appraised value as
defined in paragraph (c)(2) of this section.
(7) Expense means all costs incurred to detain, inventory,
safeguard, maintain, advertise, sell, or dispose of property under
seizure, detained, or forfeited pursuant to any law.
(8) File or filed has the following meanings:
(i) A claim or any other document submitted in an administrative
forfeiture proceeding is not deemed filed until actually received by
the appropriate official identified in the personal written notice and
the published notice specified in paragraph (i) of this section. A
claim is not considered filed if it is received by any other office or
official. In addition, a claim in an administrative forfeiture
proceeding is not considered filed if received only by an electronic or
facsimile transmission.
(ii) For purposes of computing the start of the 90-day period set
forth in 18 U.S.C. 983(a)(3), an administrative forfeiture claim is
filed on the date when the claim is received by the designated
official, even if the claim is received from an incarcerated pro se
prisoner.
(9) Interested party means any person who reasonably appears to
have an interest in the property, based on the facts known to the
Postal Inspection Service before a declaration of forfeiture is
entered.
(10) Judicial forfeiture means either a civil or a criminal
proceeding in a United States District Court that may result in a final
judgment and order of forfeiture.
(11) Mail includes regular or certified U.S. mail, and mail and
package transportation and delivery services provided by other private
or commercial interstate carriers.
(12) Nonjudicial forfeiture has the same meaning as administrative
forfeiture. See paragraph (b)(1) of this section.
(13) Person means an individual, partnership, corporation, joint
business enterprise, estate, or other legal entity capable of owning
property.
(14) Property subject to administrative forfeiture means any
personal property of the kinds described in 19 U.S.C. 1607(a)(1)(4).
(15) Property subject to forfeiture refers to all property that
Federal law authorizes to be forfeited to the United States of America
in any administrative forfeiture proceeding, in any civil judicial
forfeiture proceeding, or in any criminal forfeiture proceeding.
(d) Seizing property subject to forfeiture--(1) Authority to seize
property. Postal Inspectors may seize assets under any Federal statute
over which the Postal Inspection Service has investigative or
forfeiture jurisdiction.
(2) Turnover of assets seized by state and local agencies. (i)
Property that is seized by a state or local law enforcement agency and
transferred to the Postal Inspection Service for administrative or
civil forfeiture may be adopted for administrative forfeiture without
the issuance of any Federal seizure warrant or other Federal judicial
process.
(ii) Where a state or local law enforcement agency maintains
custody of property pursuant to process issued by a state or local
judicial authority, and notifies the Postal Inspection Service of the
impending release of such property, the Postal Inspection Service may
seek and obtain a Federal seizure warrant in anticipation of a state or
local judicial authority releasing the asset from state process for
purposes of Federal seizure, and may execute such seizure warrant when
the state or local law enforcement agency releases the property as
allowed or directed by its judicial authority.
(e) Inventory. The Postal Inspection Service shall prepare an
inventory of any seized property.
(f) Custody. (1) All property seized by Postal Inspectors for
forfeiture shall be delivered to the custody of the U.S. Marshals
Service, or custodian approved by the U.S. Marshals Service, as soon as
possible after seizure, unless it is retained as evidence.
(2) Seized U.S. currency (and to the extent practicable seized
foreign currency and negotiable instruments) must be deposited promptly
in the Holding Account--Seizure and Forfeiture under the control of the
Postal Inspection Service pending forfeiture. Provisional exceptions to
this requirement may be granted as follows:
(i) If the seized currency has a value less than $5,000, and a
supervisory official within the U.S. Attorney's Office determines in
writing that the currency is reasonably likely to serve a significant,
independent, tangible, evidentiary purpose, or that retention is
necessary while the potential evidentiary significance of the currency
is being determined by scientific testing or otherwise, or
(ii) The seized currency has a value greater than $5,000, and the
Chief, Asset Forfeiture Money Laundering Section (AFMLS) determines in
writing that the currency is reasonably likely to serve a significant,
independent, tangible, evidentiary purpose, or that retention is
necessary while the potential evidentiary significance of the currency
is being determined by scientific testing or otherwise.
(3) Seized currency has a significant independent, evidentiary
purpose as those terms are used in paragraphs (f)(2)(i) and (f)(2)(ii)
of this section if, for example, it bears fingerprint evidence, is
packaged in an incriminating fashion, or contains a traceable amount of
narcotic residue or some other substance of evidentiary significance.
If only a portion of the seized currency has evidentiary value, only
that portion should be retained; the balance should be deposited.
(g) Appraisal. The Postal Inspection Service shall determine the
domestic value of the seized property as soon as practicable following
seizure.
(h) Release before claim. (1) After seizure for forfeiture and
prior to the filing of any claim, the appropriate
[[Page 25598]]
official is authorized to release property seized for forfeiture
provided:
(i) The property is not contraband, evidence of a violation of law,
or any property, the possession of which by the claimant, petitioner,
or the person from whom it was seized is prohibited by state or Federal
law, and does not have a design or other characteristic that
particularly suits it for use in illegal activities; and
(ii) The appropriate official determines within 10 days of seizure
that there is an innocent party with the right to immediate possession
of the property or that the release would be in the best interest of
justice or the Government.
(2) Further, at any time after seizure and before any claim is
filed, such seized property may be released if the appropriate official
determines that there is an innocent party with the right to immediate
possession of the property or that the release would be in the best
interest of justice or the Government.
(i) Commencing an administrative forfeiture. An administrative
forfeiture proceeding begins when notice is first published in
accordance with paragraph 233.7(i)(1), or the first personal written
notice is sent in accordance with paragraph 233.7(i)(2), whichever
occurs first.
(j) Notice of administrative forfeiture--(1) Notice by publication.
(i) After seizing property subject to administrative forfeiture, the
Appropriate Official shall select from the following options a means of
publication reasonably calculated to notify potential claimants of the
seizure and intent to forfeit and sell or otherwise dispose of the
property:
(A) Publication once each week for at least three successive weeks
in a newspaper generally circulated in the judicial district where the
property was seized; or
(B) Posting a notice on an official Government Internet site for at
least 30 consecutive days.
(ii) The published notice shall:
(A) Describe the seized property;
(B) State the date, statutory basis, and place of seizure;
(C) State the deadline for filing a claim when personal written
notice has not been received, at least 30 days after the date of final
publication of the notice of seizure; and
(D) State the identity of the appropriate official of the Postal
Inspection Service and address where the claim must be filed.
(2) Personal written notice--(i) Manner of providing notice. After
seizing property subject to administrative forfeiture, the Postal
Inspection Service, in addition to publishing notice, shall send
personal written notice of the seizure to each interested party in a
manner reasonably calculated to reach such parties.
(ii) Content of personal written notice. The personal written
notice sent by the Postal Inspection Service shall:
(A) State the date when the personal written notice is sent;
(B) State the deadline for filing a claim, at least 35 days after
the personal written notice is sent;
(C) State the date, statutory basis, and place of seizure;
(D) State the identity of the appropriate official of the Postal
Inspection Service and the address where the claim must be filed; and
(E) Describe the seized property.
(3) Timing of notice--(i) Date of personal notice. Personal written
notice is sent on the date when the Postal Inspection Service causes it
to be placed in the mail, or otherwise sent by means reasonably
calculated to reach the interested party. The personal written notice
required by paragraph (i)(2) of this section shall be sent as soon as
practicable, and in no case more than 60 days after the date of seizure
(or 90 days after the date of seizure by a state or local law
enforcement agency if the property was turned over to the Postal
Inspection Service for the purpose of forfeiture under Federal law).
(ii) Civil judicial forfeiture. If, before the time period for
sending notice expires, the Government files a civil judicial
forfeiture action against the seized property and provides notice of
such action as required by law, personal notice of administrative
forfeiture is not required under this paragraph.
(iii) Criminal indictment. If, before the time period for sending
notice under this paragraph expires, no civil judicial forfeiture
action is filed, but a criminal indictment or information is obtained
containing an allegation that the property is subject to forfeiture,
the seizing agency shall either:
(A) Send timely personal written notice and continue the
administrative forfeiture proceeding; or
(B) After consulting with the U.S. Attorney, terminate the
administrative forfeiture proceeding and notify the custodian to return
the property to the person having the right to immediate possession
unless the U.S. Attorney takes steps necessary to maintain custody of
the property as provided in the applicable criminal forfeiture statute.
(4) Subsequent Federal seizure. If property is seized by a state or
local law enforcement agency, but personal written notice is not sent
to the person from whom the property is seized within the time period
for providing notice under paragraph (j)(3)(i) of this section, then
any administrative forfeiture proceeding against the property may
commence if:
(i) The property is subsequently seized or restrained by the Postal
Inspection Service pursuant to a Federal seizure warrant or restraining
order and the Postal Inspection Service sends notice as soon as
practicable, and in no case more than 60 days after the date of the
Federal seizure; or
(ii) The owner of the property consents to forfeiture of the
property.
(5) Tolling. (i) In states or localities where orders are obtained
from a state court authorizing the turnover of seized assets to the
Postal Inspection Service, the period from the date an application or
motion is presented to the state court for the turnover order through
the date when such order is issued by the court shall not be included
in the time period for providing notice under paragraph (j)(3)(i) of
this section.
(ii) If property is detained at an international border or port of
entry for the purpose of examination, testing, inspection, obtaining
documentation, or other investigation relating to the importation of
the property into, or the exportation of the property from the United
States, such period of detention shall not be included in the period
described in paragraph (j)(3)(i) of this section. In such cases, the
60-day period shall begin to run when the period of detention ends, if
a seizing agency seizes the property for the purpose of forfeiture to
the United States.
(6) Identity of interested party. If the Postal Inspection Service
determines the identity or interest of an interested party after the
seizure or adoption of the property, but before entering a declaration
of forfeiture, the Postal Inspection Service shall send written notice
to such interested party under paragraph 3(i) not later than 60 days
after determining the identity of the interested party or the
interested party's interest.
(7) Extending deadline for notice. The Chief Counsel for the Postal
Inspection Service may extend the period for sending personal written
notice under these regulations in a particular case for a period not to
exceed 30 days (which period may not be further extended except by a
court pursuant to 18 U.S.C. 983(a)(1)(C), (D)), if the Chief Counsel
for the Postal Inspection Service determines, and states in writing,
that there is reason to believe that notice may have an adverse result,
including: Endangering the life or physical safety of an individual;
flight from
[[Page 25599]]
prosecution; destruction of or tampering with evidence; intimidation of
potential witnesses; or otherwise seriously jeopardizing an
investigation, or unduly delaying a trial.
(8) Certification. The Chief Counsel for the Postal Inspection
Service shall provide the written certification required under 18
U.S.C. 983(a)(1)(C) when the Government requests it and the conditions
described in 18 U.S.C. 983(a)(1)(D) are present.
(k) Claims--(1) Filing. In order to contest the forfeiture of
seized property in Federal court, any person asserting an interest in
seized property subject to an administrative forfeiture proceeding
under these regulations must file a claim with the appropriate
official, after the commencement of the administrative forfeiture
proceeding as defined in paragraph (h) of this section, and not later
than the deadline set forth in a personal notice letter sent pursuant
to paragraph (i)(2) of this section. If personal written notice is sent
but not received, then the intended recipient must file a claim with
the appropriate official not later than 30 days after the date of the
final publication of the notice of seizure.
(2) Contents of claim. A claim shall:
(i) Identify the specific property being claimed;
(ii) Identify the claimant and state the claimant's interest in the
property; and
(iii) Be made under oath by the claimant, not counsel for the
claimant, and recite that it is made under the penalty of perjury,
consistent with the requirements of 28 U.S.C. 1746. An acknowledgement,
attestation, or certification by a notary public alone is insufficient.
(3) Availability of claim forms. The claim need not be made in any
particular form. However, the Postal Inspection Service will make claim
forms generally available on request. Such forms shall be written in
easily understandable language. A request for a claim form does not
extend the deadline for filing a claim. Any person may obtain a claim
form by requesting one in writing from the appropriate official.
(4) Cost bond not required. Any person may file a claim under
paragraph 233.7(k)(1) without posting bond, except in forfeitures under
statutes listed in 18 U.S.C. 983(i).
(5) Referral of claim. Upon receipt of a claim that meets the
requirements of paragraphs (k)(1) and (2) of this section, the Postal
Inspection Service shall return the property or suspend the
administrative forfeiture proceeding and promptly transmit the claim,
together with a description of the property and a complete statement of
the facts and circumstances surrounding the seizure, to the appropriate
U.S. Attorney for commencement of judicial forfeiture proceedings. Upon
making the determination that the seized property will be released, the
Postal Inspection Service shall promptly notify the person with a right
to immediate possession of the property, informing that person to
contact the property custodian within a specified period for release of
the property, and further informing that person that failure to contact
the property custodian within the specified period for release of the
property will result in abandonment of the property pursuant to
applicable regulations. The Postal Inspection Service shall notify the
property custodian of the identity of the person to whom the property
should be released. The property custodian shall have the right to
require presentation of proper identification and/or to take other
steps to verify the identity of the person who seeks the release of
property, or both.
(6) Premature filing. If a claim is filed with the appropriate
official after the seizure of the property, but before the commencement
of the administrative forfeiture proceeding as defined in paragraph (i)
of this section, the claim shall be deemed filed on the 30th day after
the commencement of the administrative forfeiture proceeding. If such
claim meets the requirements of paragraph (k)(2) of this section, the
Postal Inspection Service shall suspend the administrative forfeiture
proceedings and promptly transmit the claim, together with a
description of the property and a complete statement of the facts and
circumstances surrounding the seizure to the appropriate U.S. Attorney
for commencement of judicial forfeiture proceedings.
(7) Defective claims. If the Postal Inspection Service determines
that an otherwise timely claim does not meet the requirements of
paragraph (k)(2) of this section, the Postal Inspection Service may
notify the claimant of this determination and allow the claimant a
reasonable time to cure the defect(s) in the claim. If, within the time
allowed by the Postal Inspection Service, the requirements of paragraph
(k)(2) of this section are not met, the claim shall be void and the
forfeiture proceedings shall proceed as if no claim had been submitted.
If the claimant timely cures the deficiency, then the claim shall be
deemed filed on the date when the appropriate official receives the
cured claim.
(l) Interplay of administrative and criminal judicial forfeiture
proceedings. An administrative forfeiture proceeding pending against
seized or restrained property does not bar the Government from alleging
that the same property is forfeitable in a criminal case.
Notwithstanding the fact that an allegation of forfeiture has been
included in a criminal indictment or information, the property may be
administratively forfeited in a parallel proceeding.
(m) Requests for hardship release of seized property. (1) Under
certain circumstances, a claimant may be entitled to immediate release
of seized property on the basis of hardship.
(2) Any person filing a request for hardship release must also file
a claim to the seized property pursuant to paragraph (k) of this
section and as defined in 18 U.S.C. 983(a).
(3) The timely filing of a valid claim pursuant to paragraph (k) of
this section does not entitle the claimant to possession of the seized
property, but a claimant may request immediate release of the property
while forfeiture is pending, based on hardship.
(4) A claimant seeking release of property under 18 U.S.C. 983(f)
and these regulations must file a written request with the appropriate
official. The request must establish that:
(i) The claimant has a possessory interest in the property;
(ii) The claimant has sufficient ties to the community to provide
assurance that the property will be available at the time of trial;
(iii) The continued possession by the Government pending the final
disposition of forfeiture proceedings will cause substantial hardship
to the claimant, such as preventing the functioning of a business,
preventing an individual from working, or leaving an individual
homeless;
(iv) The claimant's likely hardship from the continued possession
by the Government of the seized property outweighs the risk that the
property will be destroyed, damaged, lost, concealed, or transferred if
it is returned to the claimant during the pendency of the proceeding;
and
(v) The property is not:
(A) Contraband, any property, the possession of which by the
claimant, petitioner, or person from whom it was seized is prohibited
by state or Federal law, currency, or other monetary instrument, or
electronic funds unless such currency or other monetary instrument or
electronic funds constitutes the assets of a legitimate business which
has been seized;
(B) Intended to be used as evidence of a violation of law;
[[Page 25600]]
(C) By reason of design or other characteristic, particularly
suited for use in illegal activities; or
(D) Likely to be used to commit additional criminal acts if
returned to the claimant.
(5) A hardship release request pursuant to this paragraph shall be
deemed to have been made on the date when it is received by the
appropriate official as defined in paragraph (c)(3) of this section, or
the date the claim was deemed filed under paragraph (k) of this
section. If the request is ruled on and denied by the appropriate
official or the property has not been released within the 15-day time
limit period, the claimant may file a petition in Federal district
court pursuant to 18 U.S.C. 983(f)(3). If a petition is filed in
Federal district court, the claimant must send a copy of the petition
to the appropriate official to whom the hardship petition was
originally submitted and to the U.S. Attorney in the judicial district
where the judicial petition was filed.
(6) If a civil forfeiture complaint is filed on property and the
claimant files a claim with the court pursuant to 18 U.S.C.
983(a)(4)(A) and Rule G(5) of the Supplemental Rules for Certain
Admiralty and Maritime Claims, a hardship petition may be submitted to
the individual identified in the public or personal notice of the civil
forfeiture action.
(n) Disposition of property before forfeiture. (1) Whenever it
appears to the Postal Inspection Service that any seized property is
liable to perish or to waste, or to be greatly reduced in value during
its detention for forfeiture, or that the expense of keeping the
property is or will be disproportionate to its value, the Chief Counsel
for the Postal Inspection Service may order destruction, sale, or other
disposition of such property prior to forfeiture. In addition, the
owner may obtain release of the property by posting a substitute
monetary amount with the Postal Inspection Service to be held subject
to forfeiture proceedings in place of the seized property to be
released. Upon approval by the Chief Counsel for the Postal Inspection
Service, the property will be released to the owner upon the payment of
an amount equal to the Government appraised value of the property if
the property is not evidence of a violation of law, is not contraband,
and has no design or other characteristics that particularly suit it
for use in illegal activities. This payment must be in the form of a
money order, an official bank check, or a cashier's check made payable
to the Postal Inspection Service. A bond in the form of a cashier's
check or official bank check will be considered as paid once the check
has been accepted for payment by the financial institution that issued
the check. If a substitute amount is posted and the property is
administratively forfeited, the Postal Inspection Service will forfeit
the substitute amount in lieu of the property. The pre-forfeiture
destruction, sale, or other disposition of seized property pursuant to
this subsection shall not extinguish any person's rights to the value
of the property under applicable law. The authority vested in the Chief
Counsel for the Postal Inspection Service under this subsection may not
be delegated.
(2) The Postal Inspection Service shall commence forfeiture
proceedings, regardless of the disposition of the property under this
paragraph. A person with an interest in the property that was destroyed
or otherwise disposed of under this paragraph may file a claim to
contest the forfeiture of the property or a petition for remission or
mitigation of the forfeiture. No employee of the Postal Inspection
Service shall be liable for the destruction or other disposition of
property made pursuant to this paragraph. The destruction or other
disposition of the property does not impair in rem jurisdiction.
(o) Declaration of administrative forfeiture. If the Postal
Inspection Service commences a timely proceeding against property
subject to administrative forfeiture, and no valid and timely claim is
filed, the appropriate official shall declare the property forfeited.
The declaration of forfeiture shall have the same force and effect as a
final decree and order of forfeiture in a Federal judicial forfeiture
proceeding.
(p) Return of property. (1) If, under 18 U.S.C. 983(a)(3), the
Postal Inspection Service is notified by the U.S. Attorney in charge of
the matter that the 90-day deadline was not met, the Postal Inspection
Service is required to release the seized property. Under this
subsection, the Postal Inspection Service is not required to return
property for which it has an independent basis for continued custody
including, but not limited to, contraband or evidence of a violation of
law.
(2) Upon becoming aware that the seized property must be released,
the Postal Inspection Service shall promptly notify the person with a
right to immediate possession of the property, informing that person to
contact the property custodian within a specified period for release of
the property, and further informing that person that failure to contact
the property custodian within the specified period for release of the
property may result in the initiation of abandonment proceedings
against the property pursuant to 39 CFR part 946. The property
custodian will be notified of the identity of the person to whom the
property should be released.
(3) The property custodian shall have the right to require
presentation of proper identification or to verify the identity of the
person who seeks the release of property.
(q) Disposition of forfeited property. (1) Whenever property is
forfeited administratively, the Postal Inspection Service may:
(i) Retain the property for official use;
(ii) Transfer ownership of the property to any Federal, state or
local law enforcement agency that participated in the investigation
leading to the forfeiture;
(iii) Sell any property that is not required to be destroyed by law
and that is not harmful to the public;
(iv) Destroy the property; or
(v) Dispose of the property as otherwise permitted by law.
(2) If the laws of a state in which an article of forfeited
property is located prohibit the sale or possession of such property,
or if the Postal Service and the Marshals Service are of the opinion
that it would be more advantageous to sell the forfeited property in
another district, the property may be moved to and sold in such other
district.
(r) Attorney fees and costs. The Postal Inspection Service is not
liable for attorney fees or costs in any administrative forfeiture
proceeding, including such proceedings in which a claim is filed, the
matter is referred to the U.S. Attorney, and the U.S. Attorney declines
to commence judicial forfeiture proceedings.
0
3. Section 233.8 is revised to read as follows:
Sec. 233.8 Expedited forfeiture proceedings for property seizures
based on violations involving the possession of personal use quantities
of a controlled substance.
(a) Purpose and scope. (1) The following definitions, regulations,
and criteria are designed to establish and implement procedures
required by section 6079 of the Anti-Drug Abuse Act of 1988, Public Law
100-690, 102 Stat. 4181. They are intended to supplement existing law
and procedures relative to the forfeiture of property under the
identified statutory authority. These regulations do not affect the
existing legal and equitable rights and remedies of those with an
interest in property seized for forfeiture, nor do these provisions
relieve interested parties from their existing obligations and
[[Page 25601]]
responsibilities in pursuing their interests through such courses of
action. These regulations are intended to reflect the intent of
Congress to minimize the adverse impact on those entitled to legal or
equitable relief occasioned by the prolonged detention of property
subject to forfeiture due to violations of law involving personal use
quantities of controlled substances. The definition of personal use
quantities of a controlled substance as contained herein is intended to
distinguish between those small quantities, which are generally
considered to be possessed for personal consumption and not for further
distribution, and those larger quantities generally considered to be
subject to further distribution.
(2) In this regard, for violations involving the possession of
personal use quantities of a controlled substance, section 6079(b)(2)
requires either that administrative forfeiture be completed within 21
days of the seizure of the property, or alternatively, that procedures
are established that provide a means by which an individual entitled to
relief may initiate an expedited administrative review of the legal and
factual basis of the seizure for forfeiture. Should an individual
request relief pursuant to these regulations and be entitled to the
return of the seized property, such property shall be returned
immediately following that determination, but not later than 20 days
after filing of a petition for expedited release by an owner, and the
administrative forfeiture process shall cease. Should the individual
not be entitled to the return of the seized property, however, the
administrative forfeiture of that property shall proceed. The owner
may, in any event, obtain release of property pending the
administrative forfeiture by submitting to the agency making the
determination property sufficient to preserve the Government's vested
interest for purposes of the administrative forfeiture.
(b) Definitions. As used in this section, the following terms shall
have the meanings specified:
(1) Commercial fishing industry vessel means a vessel that:
(i) Commercially engages in the catching, taking, or harvesting of
fish or an activity that can reasonably be expected to result in the
catching, taking, or harvesting of fish;
(ii) Commercially prepares fish or fish products other than by
gutting, decapitating, gilling, skinning, shucking, icing, freezing, or
brine chilling; or
(iii) Commercially supplies, stores, refrigerates, or transports
fish, fish products, or materials directly related to fishing or the
preparation of fish to or from a fishing, fish processing, or fish
tender vessel or fish processing facility.
(2) Controlled substance has the meaning given in 21 U.S.C. 802(6).
(3) Normal and customary manner means that inquiry suggested by
particular facts and circumstances that would customarily be undertaken
by a reasonably prudent individual in a like or similar situation.
Actual knowledge of such facts and circumstances is unnecessary, and
implied, imputed, or constructive knowledge is sufficient. An
established norm, standard, or custom is persuasive but not conclusive
or controlling in determining whether an owner acted in a normal and
customary manner to ascertain how property would be used by another
legally in possession of the property. The failure to act in a normal
and customary manner as defined herein will result in the denial of a
petition for expedited release of the property and is intended to have
the desirable effect of inducing owners of the property to exercise
greater care in transferring possession of their property.
(4) Owner means one having a legal and possessory interest in the
property seized for forfeiture. Even though one may hold primary and
direct title to the property seized, such person may not have
sufficient actual beneficial interest in the property to support a
petition as owner if the facts indicate that another person had
dominion and control over the property.
(5) Personal use quantities means those amounts of controlled
substances in possession in circumstances where there is no other
evidence of an intent to distribute, or to facilitate the
manufacturing, compounding, processing, delivering, importing, or
exporting of any controlled substance.
(i) Evidence that possession of quantities of a controlled
substance is for other than personal use may include, for example:
(A) Evidence, such as drug scales, drug distribution paraphernalia,
drug records, drug packaging material, method of drug packaging, drug
``cutting'' agents and other equipment, that indicates an intent to
process, package, or distribute a controlled substance;
(B) Information from reliable sources indicating possession of a
controlled substance with intent to distribute;
(C) The arrest or conviction record of the person or persons in
actual or constructive possession of the controlled substance for
offenses under Federal, state, or local law that indicates an intent to
distribute a controlled substance;
(D) Circumstances or reliable information indicating that the
controlled substance is related to large amounts of cash or any amount
of prerecorded Government funds;
(E) Circumstances or reliable information indicating that the
controlled substance is a sample intended for distribution in
anticipation of a transaction involving large quantities, or is part of
a larger delivery;
(F) Statements by the possessor, or otherwise attributable to the
possessor, including statements of conspirators, that indicate
possession with intent to distribute; or
(G) The fact that the controlled substance was recovered from
sweepings.
(ii) Possession of a controlled substance shall be presumed to be
for personal use when there are no indicia of illicit drug trafficking
or distribution --such as, but not limited to, the factors listed
above--and the amounts do not exceed the following quantities:
(A) One gram of a mixture or substance containing a detectable
amount of heroin;
(B) One gram of a mixture or substance containing a detectable
amount of the following:
(1) Coca leaves, except coca leaves and extracts of coca leaves
from which cocaine, ecgonine, and derivations of ecgonine or their
salts have been removed;
(2) Cocaine, its salts, optical and geometric isomers, and salts of
isomers;
(3) Ecgonine, its derivatives, their salts, isomers, and salts of
isomers; or
(4) Any compound, mixture, or preparation that contains any
quantity of any of the substances referred to in (ii)(B)(1) through
(ii)(B)(3) of this definition;
(C) One-tenth gram of a mixture or substance described in (ii)(B)
of this definition that contains cocaine base;
(D) One-tenth gram of a mixture or substance containing a
detectable amount of phencyclidine (PCP);
(E) Five hundred micrograms of lysergic acid diethylamide (LSD);
(F) One ounce of a mixture or substance containing a detectable
amount of marijuana;
(G) One gram of methamphetamine, its salts, isomers, and salts of
its isomers, or one gram of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers, or salts of
its isomers.
(iii) The possession of a narcotic, a depressant, a stimulant, a
hallucinogen or a cannabis-controlled substance will be considered in
excess of personal use
[[Page 25602]]
quantities if the dosage unit amount possessed provides the same or
greater equivalent efficacy as described in (ii)(B) of this definition.
(6) Property means property subject to forfeiture under 21 U.S.C.
881(a)(4), (6), or (7); 19 U.S.C. 1595a; or 49 U.S.C. 80303.
(7) Seizing agency means the Federal agency that has seized the
property or adopted the seizure of another agency and has the
responsibility for administratively forfeiting the property;
(8) Statutory rights or defenses to the forfeiture means all legal
and equitable rights and remedies available to a claimant of property
seized for forfeiture.
(c) Petition for expedited release in an administrative forfeiture
proceeding. (1) Where property is seized for administrative forfeiture
involving controlled substances in personal use quantities, the owner
may petition the Postal Inspection Service for expedited release of the
property.
(2) Where property described in paragraph (c)(1) of this section is
a commercial fishing industry vessel proceeding to or from a fishing
area or intermediate port of call or actually engaged in fishing
operations, which would be subject to seizure for administrative
forfeiture for a violation of law involving controlled substances in
personal use quantities, a summons to appear shall be issued in lieu of
a physical seizure. The vessel shall report to the port designated in
the summons. The Postal Inspection Service shall be authorized to
effect administrative forfeiture as if the vessel had been physically
seized. Upon answering the summons to appear on or prior to the last
reporting date specified in the summons, the owner of the vessel may
file a petition for expedited release pursuant to paragraph (c)(1) of
this section, and the provisions of paragraph (c)(1) and other
provisions in this section pertaining to a petition for expedited
release shall apply as if the vessel had been physically seized.
(3) The owner filing the petition for expedited release shall
establish the following:
(i) The owner has a valid, good faith interest in the seized
property as owner or otherwise;
(ii) The owner reasonably attempted to ascertain the use of the
property in a normal and customary manner; and
(iii) The owner did not know of or consent to the illegal use of
the property, or in the event that the owner knew or should have known
of the illegal use, the owner did what reasonably could be expected to
prevent the violation.
(4) In addition to those factors listed in paragraph (c)(3) of this
section, if an owner can demonstrate that the owner has other statutory
rights or defenses that would cause the owner to prevail on the issue
of forfeiture, such factors shall also be considered in ruling on the
petition for expedited release.
(5) A petition for expedited release must be received by the Postal
Inspection Service within 20 days from the date of the first
publication of the notice of seizure in ordered to be considered by the
Postal Inspection Service. The petition must be executed and sworn to
by the owner, and both the envelope and the request must be clearly
marked ``PETITION FOR EXPEDITED RELEASE.'' Such petition shall be filed
with the appropriate office or official identified in the personal
written notice and the publication notice.
(6) The petition shall include the following:
(i) A complete description of the property, including
identification numbers, if any, and the date and place of seizure;
(ii) The petitioner's interest in the property, which shall be
supported by title documentation, bills of sale, contracts, mortgages,
or other satisfactory documentary evidence; and
(iii) A statement of the facts and circumstances, to be established
by satisfactory proof, relied upon by the petitioner to justify
expedited release of the seized property.
(d) Ruling on petition for expedited release in an administrative
forfeiture proceeding. (1) If a final administrative determination of
the case, without regard to the provisions of this section, is made
within 21 days of the seizure, the Postal Inspection Service need take
no further action under this section on a petition for expedited
release received pursuant to paragraph (c) of this section.
(2) If no such final administrative determination is made within 21
days of the seizure, the following procedure shall apply. The Postal
Inspection Service shall, within 20 days after the receipt of the
petition for expedited release, determine whether the petition filed by
the owner has established the factors listed in paragraph (c)(3) of
this section and:
(i) If the Postal Inspection Service determines that those factors
have been established, it shall terminate the administrative
proceedings and return the property to the owner (or in the case of a
commercial fishing industry vessel for which a summons has been issued
shall dismiss the summons), except where it is evidence of a violation
of law; or
(ii) If the Postal Inspection Service determines that those factors
have not been established, the agency shall proceed with the
administrative forfeiture.
(e) Posting of substitute monetary amount in an administrative
forfeiture proceeding. (1) Where property is seized for administrative
forfeiture involving controlled substances in personal use quantities,
the owner may obtain release of the property by posting a substitute
monetary amount with the Postal Inspection Service to be held subject
to forfeiture proceedings in place of the seized property to be
released. The property will be released to the owner upon the payment
of an amount equal to the Government-appraised value of the property if
the property is not evidence of a violation of law and has no design or
other characteristics that particularly suit it for use in illegal
activities. This payment must be in the form of a traveler's check, a
money order, a cashier's check, or an irrevocable letter of credit made
payable to the Postal Inspection Service. A bond in the form of a
cashier's check will be considered as paid once the check has been
accepted for payment by the financial institution that issued the
check.
(2) If a substitute monetary amount is posted and the property is
administratively forfeited, the Postal Inspection Service will forfeit
the substitute amount in lieu of the property.
(f) Notice provisions. At the time of seizure of property defined
in paragraph (b)(6) of this section for violations involving the
possession of personal use quantities of a controlled substance, the
Postal Inspection Service must provide written notice to the possessor
of the property specifying the procedures for filing of a petition for
expedited release and for the posting of a substitute monetary bond as
set forth in section 6079 of the Anti-Drug Abuse Act of 1988 and
implementing regulations.
0
4. Section 233.9 is revised to read as follows:
Sec. 233.9 Regulations governing remission or mitigation of
administrative, civil, and criminal forfeitures.
(a) Purpose, authority, and scope--(1) Purpose. This section sets
forth the procedures for Postal Inspection Service officials to follow
when considering remission or mitigation of administrative forfeitures
under the jurisdiction of the Postal Inspection Service. The purpose of
these regulations is to provide a basis for the partial or total
remission of forfeiture for individuals who have an interest in the
[[Page 25603]]
forfeited property but who did not participate in, or have knowledge
of, the conduct that resulted in the property being subject to
forfeiture and, where required, took all reasonable steps under the
circumstances to ensure that such property would not be used, acquired,
or disposed of contrary to law. Additionally, the regulations provide
for partial or total mitigation of the forfeiture and imposition of
alternative conditions in appropriate circumstances.
(2) Authority to grant remission and mitigation. (i) Remission and
mitigation functions in administrative forfeitures under the
jurisdiction of the Postal Inspection Service are performed by the
Chief Counsel.
(ii) Remission and mitigation functions in judicial cases are
performed by the Criminal Division of the Department of Justice. Within
the Criminal Division, authority to grant remission and mitigation is
delegated to the Chief, Asset Forfeiture and Money Laundering Section.
(iii) The powers and responsibilities delegated by the regulations
in this section may be re-delegated to attorneys or managers working
under the supervision of the Chief Counsel.
(3) Scope. This section governs any petition for remission filed
with the Postal Inspection Service and supersedes any Postal Service
regulation governing petitions for remission, to the extent such
regulation is inconsistent with this section.
(4) Applicability. The time periods and internal requirements
established in this section are designed to guide the orderly
administration of the remission and mitigation process and are not
intended to create rights or entitlements in favor of individuals
seeking remission or mitigation. The regulations will apply to all
forfeiture actions commenced on or after May 1, 2012.
(b) Definitions. As used in this section:
(1) Administrative forfeiture means the process by which property
may be forfeited by the Postal Inspection Service rather than through
judicial proceedings. Administrative forfeiture has the same meaning as
``nonjudicial forfeiture,'' as that term is used in 18 U.S.C. 983.
(2) Appraised value means the estimated market value of an asset at
the time and place of seizure if such or similar property was freely
offered for sale between a willing seller and a willing buyer.
(3) Assets Forfeiture Fund means the Department of Justice Assets
Forfeiture Fund, Department of the Treasury Assets Forfeiture Fund, or
the Postal Service's Assets Forfeiture Fund, depending upon the
identity of the seizing agency.
(4) Attorney General means the Attorney General of the United
States or that official's designee.
(5) Beneficial owner means a person with actual use of, as well as
an interest in, the property subject to forfeiture.
(6) Chief, Asset Forfeiture and Money Laundering Section, and
Chief, refer to the Chief of the Asset Forfeiture and Money Laundering
Section, Criminal Division, United States Department of Justice.
(7) General creditor means one whose claim or debt is not secured
by a specific right to obtain satisfaction against the particular
property subject to forfeiture.
(8) Judgment creditor means one who has obtained a judgment against
the debtor but has not yet received full satisfaction of the judgment.
(9) Judicial forfeiture means either a civil or a criminal
proceeding in a United States District Court that may result in a final
judgment and order of forfeiture.
(10) Lienholder means a creditor whose claim or debt is secured by
a specific right to obtain satisfaction against the particular property
subject to forfeiture. A lien creditor qualifies as a lienholder if the
lien:
(i) Was established by operation of law or contract;
(ii) Was created as a result of an exchange of money, goods, or
services; and
(iii) Is perfected against the specific property forfeited for
which remission or mitigation is sought (e.g., a real estate mortgage;
a mechanic's lien).
(11) Net equity means the amount of a lienholder's monetary
interest in the property subject to forfeiture. Net equity shall be
computed by determining the amount of unpaid principal and unpaid
interest at the time of seizure, and by adding to that sum unpaid
interest calculated from the date of seizure through the last full
month prior to the date of the decision on the petition. Where a rate
of interest is set forth in a security agreement, the rate of interest
to be used in this computation will be the annual percentage rate so
specified in the security agreement that is the basis of the
lienholder's interest. In this computation, however, there shall be no
allowances for attorneys' fees, accelerated or enhanced interest
charges, amounts set by contract as damages, unearned extended warranty
fees, insurance, service contract charges incurred after the date of
seizure, allowances for dealer's reserve, or any other similar charges.
(12) Nonjudicial forfeiture has the same meaning as administrative
forfeiture as defined in this section.
(13) Owner means the person in who primary title is vested or whose
interest is manifested by the actual and beneficial use of the
property, even though the title is vested in another. A victim of an
offense, as defined in paragraph (b)(22) of this section, may also be
an owner if that person has a present legally cognizable ownership
interest in the property forfeited. A nominal owner of property will
not be treated as its true owner if that person is not its beneficial
owner.
(14) Person means an individual, partnership, corporation, joint
business enterprise, estate, or other legal entity capable of owning
property.
(15) Petition means a petition for remission or mitigation of
forfeiture under the regulations in this part. This definition includes
a petition for restoration of the proceeds of sale of forfeited
property and a petition for the value of the forfeited property placed
into official use.
(16) Petitioner means the person applying for remission,
mitigation, restoration of the proceeds of sale, or for the appraised
value of forfeited property, under this part. A petitioner may be an
owner as defined in paragraph (b)(13) of this section, a lienholder as
defined in paragraph (b)(10), or a victim as defined in paragraph
(b)(22), subject to the limitations of paragraph (h) of this section.
(17) Property means real or personal property of any kind capable
of being owned or possessed.
(18) Record means a series of arrests for related crimes, unless
the arrestee was acquitted or the charges were dismissed for lack of
evidence, a conviction for a related crime or completion of sentence
within 10 years of the acquisition of the property subject to
forfeiture, or two convictions for a related crime at any time in the
past.
(19) Related crime as used in paragraphs (b)(18) and (f) of this
section means any crime similar in nature to that which gives rise to
the seizure of property for forfeiture. For example, where property is
seized for a violation of the Federal laws relating to drugs, a related
crime would be any offense involving a violation of the Federal laws
relating to drugs, or the laws of any state or political subdivision
thereof relating to drugs.
(20) Related offense as used in paragraph (h) of this section
means:
(i) Any predicate offense charged in a Federal Racketeer Influenced
and
[[Page 25604]]
Corrupt Organizations Act (RICO) count for which forfeiture was
ordered; or
(ii) An offense committed as part of the same scheme or design, or
pursuant to the same conspiracy, as was involved in the offense for
which forfeiture was ordered.
(21) Ruling Official means any official to whom decision making
authority has been delegated pursuant to paragraph (a)(2) of this
section.
(22) Seizing agency means any Federal agency that seized the
property or adopted the seizure of another agency for Federal
forfeiture.
(23) Victim means a person who has incurred a pecuniary loss as a
direct result of the commission of the offense underlying a forfeiture.
A drug user is not considered a victim of a drug trafficking offense
under this definition. A victim does not include one who acquires a
right to sue the perpetrator of the criminal offense for any loss by
assignment, subrogation, inheritance, or otherwise from the actual
victim, unless that person has acquired an actual ownership interest in
the forfeited property; provided however, that if a victim has received
compensation from insurance or any other source with respect to a
pecuniary loss, remission may be granted to the third party who
provided compensation, up to the amount of the victim's pecuniary loss
as defined in paragraph (h)(3) of this section.
(24) Violator means the person whose use or acquisition of the
property in violation of the law subjected such property to seizure for
forfeiture.
(c) Petitions in administrative forfeiture cases. (1) Notice of
seizure. The notice of seizure and intent to forfeit the property shall
advise any persons who may have a present ownership interest in the
property to submit their petitions for remission or mitigation within
30 days of the date they receive the notice in order to facilitate
processing. Petitions shall be considered any time after notice until
the property has been forfeited, except in cases involving petitions to
restore the proceeds from the sale of forfeited property. A notice of
seizure shall include the Ruling Official, the mailing and street
address of the official to whom petitions should be sent, and an asset
identifier number.
(2) Persons who may file. (i) A petition for remission or
mitigation must be filed by a petitioner as defined in paragraph
(b)(16) of this section, or as prescribed in paragraph (i)(7) and (8)
of this section. A person or person acting on their behalf may not file
a petition if, after notice or knowledge of the fact that a warrant or
process has been issued for his apprehension, in order to avoid
criminal prosecution the person:
(A) Purposely leaves the jurisdiction of the United States;
(B) Declines to enter or reenter the United States to submit to its
jurisdiction; or
(C) Otherwise evades the jurisdiction of the court in which a
criminal matter is pending against the person.
(ii) Paragraph (c)(2)(i)(A) of this section applies to a petition
filed by a corporation if any majority shareholder, or individual
filing the claim on behalf of the corporation:
(A) Purposely leaves the jurisdiction of the United States;
(B) Declines to enter or reenter the United States to submit to its
jurisdiction; or
(C) Otherwise evades the jurisdiction of the court in which a
criminal case is pending against the person.
(3) Contents of petition. (i) All petitions must include the
following information in clear and concise terms:
(A) The name, address, and social security or other taxpayer
identification number of the person claiming an interest in the seized
property who is seeking remission or mitigation;
(B) The name of the seizing agency, the asset identifier number,
and the date and place of seizure;
(C) A complete description of the property, including make, model,
and serial numbers, if any; and
(D) A description of the petitioner's interest in the property as
owner, lienholder, or otherwise, supported by original or certified
bills of sale, contracts, deeds, mortgages, or other documentary
evidence. Such documentation includes evidence establishing the source
of funds for seized currency or the source of funds used to purchase
the seized asset.
(ii) Any factual recitation or documentation of any type in a
petition must be supported by a declaration under penalty of perjury
that meets the requirements of 28 U.S.C. 1746.
(4) Releases. In addition to the contents of the petition for
remission or mitigation set forth in paragraph (c)(3) of this section,
upon request, the petitioner shall also furnish the agency with an
instrument executed by the titled or registered owner and any other
known claimant of an interest in the property releasing interest in
such property.
(5) Filing a petition. (i) A petition for remission or mitigation
subject to administrative forfeiture is to be sent to the official
address provided in the notice of seizure and shall be sworn to by the
petitioner or by the petitioner's attorney upon information and belief,
supported by the client's sworn notice of representation pursuant to 28
U.S.C. 1746, as set out in paragraph (i)(7).
(ii) If the notice of seizure does not provide an official address,
the petition shall be addressed to the Asset Forfeiture Unit at the
following address: Asset Forfeiture Unit, Criminal Investigations, U.S.
Postal Inspection Service, P.O. Box 44373, Washington, DC 20026-4373.
(iii) Submission by facsimile or other electronic means will not be
accepted.
(6) Agency investigation. Upon receipt of a petition, the Postal
Inspection Service shall investigate the merits of the petition and
prepare a written report containing the results of that investigation.
This report shall be submitted to the Ruling Official for review and
consideration.
(7) Ruling. Upon receipt of the petition and the agency report, the
Ruling Official for the Postal Inspection Service shall review the
petition and the report, if any, and shall rule on the merits of the
petition. No hearing shall be held.
(8) Petitions granted. If the Ruling Official grants a remission or
mitigation of the forfeiture, a copy of the decision shall be mailed to
the petitioner or, if represented by an attorney, to the petitioner's
attorney. A copy shall also be sent to the U.S. Marshals Service, or
other property custodian. The written decision shall include the terms
and conditions, if any, upon which the remission or mitigation is
granted, and the procedures the petitioner must follow to obtain
release of the property or the monetary interest therein.
(9) Petitions denied. If the Ruling Official denies a petition, a
copy of the decision shall be mailed to the petitioner or, if
represented by an attorney, to the petitioner's attorney of record. A
copy of the decision shall also be sent to the U.S. Marshals Service,
or other property custodian. The decision shall specify the reason that
the petition was denied. The decision shall advise the petitioner that
a request for reconsideration of the denial of the petition may be
submitted to the Ruling Official in accordance with paragraph (c)(10)
of this section.
(10) Request for reconsideration. (i) A request for reconsideration
of the denial of the petition shall be considered if:
(A) It is postmarked or received by the office of the Ruling
Official within 10 days from the receipt of the notice of denial of the
petition by the petitioner; and
(B) The request is based on information or evidence not previously
considered that is material to the basis for the denial or presents a
basis clearly
[[Page 25605]]
demonstrating that the denial was erroneous.
(ii) In no event shall a request for reconsideration be decided by
the same Ruling Official who ruled on the original petition.
(iii) Only one request for reconsideration of a denial of a
petition shall be considered.
(11) Restoration of proceeds from sale. (i) A petition for
restoration of the proceeds from the sale of forfeited property, or for
the appraised value of forfeited property when the forfeited property
has been retained by or delivered to a Government agency for official
use, may be submitted by an owner or lienholder in cases in which the
petitioner:
(A) Did not know of the seizure prior to the entry of a declaration
of forfeiture; and
(B) Could not reasonably have known of the seizure prior to the
entry of a declaration of forfeiture.
(ii) Such a petition shall be submitted pursuant to paragraphs
(c)(2) through (c)(5) of this section within 90 days of the date the
property is sold or otherwise disposed of.
(d) Petitions in judicial forfeiture cases--(1) Notice of seizure.
The notice of seizure and intent to forfeit the property shall advise
any persons who may have a present ownership interest in the property
to submit their petitions for remission or mitigation within 30 days of
the date they receive the notice in order to facilitate processing.
Petitions shall be considered any time after notice until such time as
the forfeited property is placed in official use, sold, or otherwise
disposed of according to law, except in cases involving petitions to
restore property. A notice of seizure shall include the title of the
Ruling Official and the mailing and street address of the official to
whom petitions should be sent, the name of the agency seizing the
property, an asset identifier number, and the district court docket
number.
(2) Persons who may file. A petition for remission or mitigation
must be filed by a petitioner as defined in paragraph (b)(16) of this
section, or as prescribed in paragraph (i)(7) and (8) of this section.
(3) Contents of petition. (i) All petitions must include the
following information in clear and concise terms:
(A) The name, address, and Social Security or other taxpayer
identification number of the person claiming an interest in the seized
property who is seeking remission or mitigation;
(B) The name of the seizing agency, the asset identifier number,
and the date and place of seizure;
(C) The district court docket number;
(D) A complete description of the property, including the address
or legal description of real property, and make, model, and serial
numbers of personal property, if any; and
(E) A description of the petitioner's interest in the property as
owner, lienholder, or otherwise, supported by original or certified
bills of sale, contracts, mortgages, deeds, or other documentary
evidence.
(ii) Any factual recitation or documentation of any type in a
petition must be supported by a declaration under penalty of perjury
that meets the requirements of 28 U.S.C. 1746.
(4) Releases. In addition to the content of the petition for
remission or mitigation set forth in paragraph (d)(3) of this section,
the petitioner, upon request, also shall furnish the agency with an
instrument executed by the titled or registered owner and any other
known claimant of an interest in the property releasing the interest in
such property.
(5) Filing petition with Department of Justice. A petition for
remission or mitigation of a judicial forfeiture shall be addressed to
the Attorney General; shall be sworn to by the petitioner or by the
petitioner's attorney upon information and belief, supported by the
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as
set forth in paragraph (i)(7) of this section; and shall be submitted
to the U.S. Attorney for the district in which the judicial forfeiture
proceedings are brought.
(6) Agency investigation and recommendation; U.S. Attorney's
recommendation. Upon receipt of a petition, the U.S. Attorney shall
direct the seizing agency to investigate the merits of the petition
based on the information provided by the petitioner and the totality of
the agency's investigation of the underlying basis for forfeiture. The
agency shall submit to the U.S. Attorney a report of its investigation
and its recommendation on whether the petition should be granted or
denied. Upon receipt of the agency's report and recommendation, the
U.S. Attorney shall forward to the Chief, Asset Forfeiture and Money
Laundering Section, the petition, the seizing agency's report and
recommendation, and the U.S. Attorney's recommendation on whether the
petition should be granted or denied.
(7) Ruling. The Chief shall rule on the petition. No hearing shall
be held. The Chief shall not rule on any petition for remission if such
remission was previously denied by the administrative agency pursuant
to paragraph (c) of this section.
(8) Petitions granted. If the Chief grants a remission or mitigates
the forfeiture, the Chief shall mail a copy of the decision to the
petitioner (or, if represented by an attorney, to the petitioner`s
attorney), and shall mail or transmit electronically a copy of the
decision to the appropriate U.S. Attorney, the U.S. Marshals Service or
other property custodian, and the seizing agency. The written decision
shall include the terms and conditions, if any, upon which the
remission or mitigation is granted and the procedures the petitioner
must follow to obtain release of the property or the monetary interest
therein. The Chief shall advise the petitioner or the petitioner`s
attorney to consult with the U.S. Attorney as to such terms and
conditions. The U.S. Attorney shall confer with the seizing agency
regarding the release and shall coordinate disposition of the property
with that office and the U.S. Marshals Service or other property
custodian.
(9) Petitions denied. If the Chief denies a petition, a copy of
that decision shall be mailed to the petitioner (or, if represented by
an attorney, to the petitioner`s attorney of record), and mailed or
transmitted electronically to the appropriate U.S. Attorney, the U.S.
Marshals Service or other property custodian, and the seizing agency.
The decision shall specify the reason that the petition was denied. The
decision shall advise the petitioner that a request for reconsideration
of the denial of the petition may be submitted to the Chief at the
address provided in the decision, in accordance with paragraph (d)(10)
of this section.
(10) Request for reconsideration. (i) A request for reconsideration
of the denial shall be considered if:
(A) It is postmarked or received by the Asset Forfeiture and Money
Laundering Section at the address contained in the decision denying the
petition within 10 days from the receipt of the notice of denial of the
petition by the petitioner;
(B) A copy of the request is also received by the appropriate U.S.
Attorney within 10 days of the receipt of the denial by the petitioner;
and
(C) The request is based on information or evidence not previously
considered that is material to the basis for the denial or presents a
basis clearly demonstrating that the denial was erroneous.
(ii) In no event shall a request for reconsideration be decided by
the Ruling Official who ruled on the original petition.
[[Page 25606]]
(iii) Only one request for reconsideration of a denial of a
petition shall be considered.
(iv) Upon receipt of the request for reconsideration of the denial
of a petition, disposition of the property will be delayed pending
notice of the decision at the request of the Chief. lf the request for
reconsideration is not received within the prescribed period, the U.S.
Marshals Service may dispose of the property.
(11) Restoration of proceeds from sale. (i) A petition for
restoration of the proceeds from the sale of forfeited property, or for
the appraised value of forfeited property when the forfeited property
has been retained by or delivered to a Government agency for official
use, may be submitted by an owner or lienholder in cases in which the
petitioner:
(A) Did not know of the seizure prior to the entry of a final order
of forfeiture; and
(B) Could not reasonably have known of the seizure prior to the
entry of a final order of forfeiture.
(ii) Such a petition must be submitted pursuant to paragraphs
(d)(2) through (d)(5) of this section within 90 days of the date the
property was sold or otherwise disposed of.
(e) Criteria governing administrative and judicial remission and
mitigation--(1) Remission. (i) The Ruling Official shall not grant
remission of a forfeiture unless the petitioner establishes that the
petitioner has a valid, good faith, and legally cognizable interest in
the seized property as owner or lienholder as defined in this part and
is an innocent owner within the meaning of 18 U.S.C. 983(d)(2)(A) or
(d)(3)(A).
(ii) For purposes of this paragraph (e), the knowledge and
responsibilities of a petitioner's representative, agent, or employee
are imputed to the petitioner where the representative, agent, or
employee was acting in the course of that person's employment and in
furtherance of the petitioner's business.
(iii) The petitioner has the burden of establishing the basis for
granting a petition for remission or mitigation of forfeited property,
a restoration of proceeds of sale or appraised value of forfeited
property, or a reconsideration of a denial of such a petition. Failure
to provide information or documents and to submit to interviews, as
requested, may result in a denial of the petition.
(iv) The Ruling Official shall presume a valid forfeiture and shall
not consider whether the evidence is sufficient to support the
forfeiture.
(v) Willful, materially false statements or information made or
furnished by the petitioner in support of a petition for remission or
mitigation of forfeited property, the restoration of proceeds or
appraised value of forfeited property, or the reconsideration of a
denial of any such petition shall be grounds for denial of such
petition and possible prosecution for the filing of false statements.
(2) Mitigation. (i) The Ruling Official may grant mitigation to a
party not involved in the commission of the offense underlying
forfeiture:
(A) Where the petitioner has not met the minimum conditions for
remission, but the Ruling Official finds that some relief should be
granted to avoid extreme hardship, and that return of the property
combined with imposition of monetary or other conditions of mitigation
in lieu of a complete forfeiture will promote the interest of justice
and will not diminish the deterrent effect of the law. Extenuating
circumstances justifying such a finding include those circumstances
that reduce the responsibility of the petitioner for knowledge of the
illegal activity, knowledge of the criminal record of a user of the
property, or failure to take reasonable steps to prevent the illegal
use or acquisition by another for some reason, such as a reasonable
fear of reprisal; or
(B) Where the minimum standards for remission have been satisfied
but the overall circumstances are such that, in the opinion of the
Ruling Official, complete relief is not warranted.
(ii) The Ruling Official may as a matter of discretion grant
mitigation to a party involved in the commission of the offense
underlying the forfeiture where certain mitigating factors exist,
including, but not limited to: The lack of a prior record or evidence
of similar criminal conduct; if the violation does not include drug
distribution, manufacturing, or importation, the fact that the violator
has taken steps, such as drug treatment, to prevent further criminal
conduct; the fact that the violation was minimal and was not part of a
larger criminal scheme; the fact that the violator has cooperated with
Federal, state, or local investigations relating to the criminal
conduct underlying the forfeiture; or the fact that complete forfeiture
of an asset is not necessary to achieve the legitimate purposes of
forfeiture.
(iii) Mitigation may take the form of a monetary condition or the
imposition of other conditions relating to the continued use of the
property, and the return of the property, in addition to the imposition
of any other costs that would be chargeable as a condition to
remission. This monetary condition is considered as an item of cost
payable by the petitioner, and shall be deposited into the Postal
Inspection Service's Fund as an amount realized from forfeiture in
accordance with the applicable statute. If the petitioner fails to
accept the Ruling Official's mitigation decision or any of its
conditions, or fails to pay the monetary amount within 20 days of the
receipt of the decision, the property shall be sold, and the monetary
amount imposed and other costs chargeable as a condition to mitigation
shall be subtracted from the proceeds of the sale before transmitting
the remainder to the petitioner.
(f) Special rules for specific petitioners--(1) General creditors.
A general creditor may not be granted remission or mitigation of
forfeiture unless that person otherwise qualifies as petitioner under
this part.
(2) Rival claimants. If the beneficial owner of the forfeited
property and the owner of a security interest in the same property each
files a petition, and if both petitions are found to be meritorious,
the claims of the beneficial owner shall take precedence.
(3) Voluntary bailments. A petitioner who allows another to use the
petitioner's property without cost, and who is not in the business of
lending money secured by property or of leasing or renting property for
profit, shall be granted remission or mitigation of forfeiture in
accordance with the provisions of paragraph (e) of this section.
(4) Lessors. A person engaged in the business of leasing or renting
real or personal property on a long-term basis with the right to
sublease shall not be entitled to remission or mitigation of a
forfeiture of such property unless the lessor can demonstrate
compliance with all the requirements of paragraph (e) of this section.
(5) Straw owners. A petition by any person who has acquired a
property interest recognizable under this part, and who knew or had
reason to believe that the interest was conveyed by the previous owner
for the purpose of circumventing seizure, forfeiture, or the
regulations in this part, shall be denied. A petition by a person who
purchases or owns property for another who has a record for related
crimes as defined in paragraph (b)(19), or a petition by a lienholder
who knows or has reason to believe that the purchaser or owner of
record is not the real purchaser or owner, shall be denied unless both
the purchaser of record and the real purchaser or owner meet the
requirements of paragraph (e) of this section.
[[Page 25607]]
(6) Judgment creditors. (i) A judgment creditor will be recognized
as a lienholder if:
(A) The judgment was duly recorded before the seizure of the
property for forfeiture;
(B) Under applicable state or other local law, the judgment
constitutes a valid lien on the property that attached to it before the
seizure of the property for forfeiture; and
(C) The petitioner had no knowledge of the commission of any act or
acts giving rise to the forfeiture at the time the judgment became a
lien on the forfeited property.
(ii) A judgment creditor will not be recognized as a lienholder if
the property in question is not property of which the judgment debtor
is entitled to claim ownership under applicable state or other local
law (e.g., stolen property). A judgment creditor is entitled under this
part to no more than the amount of the judgment, exclusive of any
interest, costs, or other fees including attorney's fees associated
with the action that led to the judgment or its collection.
(iii) A judgment creditor's lien must be registered in the district
where the property is located if the judgment was obtained outside the
district.
(g) Terms and conditions of remission and mitigation--(1) Owners.
(i) An owner's interest in property that has been forfeited is
represented by the property itself or by a monetary interest equivalent
to that interest at the time of seizure. Whether the property or a
monetary equivalent will be remitted to an owner shall be determined at
the discretion of the Ruling Official.
(ii) If a civil judicial forfeiture action against the property is
pending, release of the property must await an appropriate court order.
(iii) Where the Government sells or disposes of the property prior
to the grant of the remission, the owner shall receive the proceeds of
that sale, less any costs incurred by the Government in the sale. The
Ruling Official, as a matter of discretion, may waive the deduction of
costs and expenses incident to the forfeiture.
(iv) Where the owner does not comply with the conditions imposed
upon release of the property by the Ruling Official, the property shall
be sold. Following the sale, the proceeds shall be used to pay all
costs of the forfeiture and disposition of the property, in addition to
any monetary conditions imposed. The remaining balance shall be paid to
the owner.
(2) Lienholders. (i) When the forfeited property is to be retained
for official use or transferred to a state or local law enforcement
agency or foreign government pursuant to law, and remission or
mitigation has been granted to a lienholder, the recipient of the
property shall assure that:
(A) In the case of remission, the lien is satisfied as determined
through the petition process; or
(B) In the case of mitigation, an amount equal to the net equity,
less any monetary conditions imposed, is paid to the lienholder prior
to the release of the property to the recipient agency of foreign
government.
(ii) When the forfeited property is not retained for official use
or transferred to another agency or foreign government pursuant to law,
the lienholder shall be notified by the Ruling Official of the right to
select either of the following alternatives:
(A) Return of Property. The lienholder may obtain possession of the
property after paying the United States, through the Ruling Official,
the costs and expenses incident to the forfeiture, the amount, if any,
by which the appraised value of the property exceeds the lienholder's
net equity in the property, and any amount specified in the Ruling
Official's decision as a condition to remit the property. The Ruling
Official, as a matter of discretion, may waive costs and expenses
incident to the forfeiture. The Ruling Official shall forward a copy of
the decision, a memorandum of disposition, and the original releases to
the division or field office responsible for the seizure and custody of
the property or, if applicable, to the U.S. Marshals Service, who shall
thereafter release the property to the lienholder; or
(B) Sale of Property and Payment to Lienholder. Subject to the
provisions of paragraph (i)(1) of this section, upon sale of the
property, the lienholder may receive the payment of a monetary amount
up to the sum of the lienholder's net equity, less the expenses and
costs incident to the forfeiture and sale of the property, and any
other monetary conditions imposed. The Ruling Official, as a matter of
discretion, may waive costs and expenses incident to the forfeiture.
(iii) If the lienholder does not notify the Ruling Official of the
selection of one of the two options set forth in this paragraph
(g)(2)(ii) within 20 days of the receipt of notification, the Ruling
Official shall direct the division or field office responsible for the
seizure or custody, or if applicable, the U.S. Marshals Service, to
sell the property and pay the lienholder an amount up to the net
equity, less the costs and expenses incurred incident to the forfeiture
and sale, and any monetary conditions imposed. In the event a
lienholder subsequently receives a payment of any kind on the debt owed
for which he or she received payment as a result of the granting of
remission or mitigation, the lienholder shall reimburse the Postal
Service Forfeiture Fund to the extent of the payment received.
(iv) Where the lienholder does not comply with the conditions
imposed upon the release of the property, the property shall be sold
after forfeiture. From the proceeds of the sale, all costs incident to
the forfeiture and sale shall first be deducted, and the balance up to
the net equity, less any monetary conditions, shall be paid to the
lienholder.
(h) Remission procedures for victims. This section applies to
victims of an offense underlying the forfeiture of property, or of a
related offense, who do not have a present ownership interest in the
forfeited property (or, in the case of multiple victims of an offense,
who do not have a present ownership interest in the forfeited property
that is clearly superior to that of other petitioner victims). This
section applies only with respect to property forfeited pursuant to
statutes that explicitly authorize restoration or remission of
forfeited property to victims. A victim requesting remission under this
section may concurrently request remission as an owner, pursuant to the
regulations set forth in paragraphs (c), (d), and (g) of this section.
The claims of victims granted remission as both an owner and victim
shall, like other owners, have priority over the claims of any non-
owner victims whose claims are recognized under this section.
(1) Remission procedure for victims--(i) Where to file. Persons
seeking remission as victims shall file petitions for remission with
the appropriate deciding official as described in paragraph (c)(5)
(administrative forfeiture) or (d)(5) (judicial forfeiture) of this
section.
(ii) Time of decision. The Ruling Official or that person's
designee as described in paragraph (a)(2) of this section may consider
petitions filed by persons claiming eligibility for remission as
victims at any time prior to the disposal of the forfeited property in
accordance with law.
(iii) Request for reconsideration. Persons denied remission under
this section may request reconsideration of the denial, in accordance
with paragraph (c)(10) (administrative forfeiture) or (d)(10) (judicial
forfeiture) of this section.
(2) Qualification to file. A victim, as defined in paragraph
(b)(22) of this section, may be granted remission, if in
[[Page 25608]]
addition to complying with the other applicable provisions of this
paragraph (h), the victim satisfactorily demonstrates that:
(i) A pecuniary loss of a specific amount has been directly caused
by the criminal offense, or related offense, that was the underlying
basis for the forfeiture, and that the loss is supported by documentary
evidence including invoices and receipts;
(ii) The pecuniary loss is the direct result of the illegal acts
and is not the result of otherwise lawful acts that were committed in
the course of a criminal offense;
(iii) The victim did not knowingly contribute to, participate in,
benefit from, or act in a willfully blind manner towards commission of
the offense, or related offense, that was the underlying basis of the
forfeiture;
(iv) The victim has not in fact been compensated for the wrongful
loss of the property by the perpetrator or others; and
(v) The victim does not have recourse reasonably available to other
assets from which to obtain compensation for the wrongful loss of the
property.
(3) Pecuniary loss. The amount of the pecuniary loss suffered by a
victim for which remission may be granted is limited to the fair market
value of the property of which the victim was deprived as of the date
of the occurrence of the loss. No allowance shall be made for interest
forgone or for collateral expenses incurred to recover lost property or
to seek other recompense.
(4) Torts. A tort associated with illegal activity that formed the
basis for the forfeiture shall not be a basis for remission, unless it
constitutes the illegal activity itself, nor shall remission be granted
for physical injuries to a petitioner or for damage to a petitioner's
property.
(5) Denial of petition. As a matter of discretion, the Ruling
Official may decline to grant remission where:
(i) There is substantial difficulty in calculating the pecuniary
loss incurred by the victim or victims;
(ii) The amount of the remission, if granted, would be small
compared with the amount of expenses incurred by the Government in
determining whether to grant remission; or
(iii) The total number of victims is large and the monetary amount
of the remission so small as to make its granting impractical.
(6) Pro rata basis. In granting remission to multiple victims
pursuant to this section, the Ruling Official should generally grant
remission on a pro rata basis to recognized victims when petitions
cannot be granted in full due to the limited value of the forfeited
property. However, the Ruling Official may consider, among others, the
following factors in establishing appropriate priorities in individual
cases:
(i) The specificity and reliability of the evidence establishing a
loss;
(ii) The fact that a particular victim is suffering an extreme
financial hardship;
(iii) The fact that a particular victim has cooperated with the
Government in the investigation related to the forfeiture or to a
related persecution or civil action; and
(iv) In the case of petitions filed by multiple victims of related
offenses, the fact that a particular victim is a victim of the offense
underlying the forfeiture.
(7) Reimbursement. Any petitioner granted remission pursuant to
this part shall reimburse the Postal Service Forfeiture Fund for the
amount received, to the extent the individual later receives
compensation for the loss of property from any other source. The
petitioner shall surrender the reimbursement upon payment from any
secondary source.
(8) Claims of financial institution regulatory agencies. In cases
involving property forfeitable under 18 U.S.C. 981(a)(1)(C) or (D), the
Ruling Official may decline to grant a petition filed by a petitioner
in whole or in part due to the lack of sufficient forfeitable funds to
satisfy both the petitioner and claims of the financial institution
regulatory agencies pursuant to 18 U.S.C. 981(e)(3) or (7). Generally,
claims of financial institution regulatory agencies pursuant to 18
U.S.C. 981(e)(3) or (7) shall take priority over claims of victims.
(9) Amount of remission. Consistent with the Assets Forfeiture Fund
statute (28 U.S.C. 524(c)), the amount of remission shall not exceed
the victim's share of the net proceeds of the forfeitures associated
with the activity that caused the victim's loss. The calculation of net
proceeds includes, but is not limited to, the deduction of allowable
Government expenses and valid third-party claims.
(i) Miscellaneous provisions--(1) Priority of payment. Except where
otherwise provided in this part, costs incurred by the Postal
Inspection Service, the U.S. Marshals Service, and other agencies
participating in the forfeiture that were incident to the forfeiture,
sale, or other disposition of the property shall be deducted from the
amount available for remission or mitigation. Such costs include, but
are not limited to, court costs, storage costs, brokerage and other
sales-related costs, the amount of any liens and associated costs paid
by the Government on the property, costs incurred in paying the
ordinary and necessary expenses of a business seized for forfeiture,
awards for information as authorized by statute, expenses of trustees
or other assistants pursuant to paragraph (i)(3) of this section,
investigative or prosecutorial costs specially incurred incident to the
particular forfeiture, and costs incurred incident to the processing of
petitions for remission or mitigation. The remaining balance shall be
available for remission or mitigation. The Ruling Official shall direct
the distribution of the remaining balance in the following order or
priority, except that the Ruling Official may exercise discretion in
determining the priority between petitioners belonging to classes
described in paragraph (i)(1)(iii) and (iv) of this section in
exceptional circumstances:
(i) Owners;
(ii) Lienholders;
(iii) Federal financial institution regulatory agencies (pursuant
to paragraph (i)(5) of this section), not constituting owners or
lienholders; and
(iv) Victims not constituting owners or lienholders pursuant to
paragraph (h) of this part.
(2) Sale or disposition of property prior to ruling. If forfeited
property has been sold or otherwise disposed of prior to a ruling, the
Ruling Official may grant relief in the form of a monetary amount. The
amount realized by the sale of property is presumed to be the value of
the property. Monetary relief shall not be greater than the appraised
value of the property at the time of seizure and shall not exceed the
amount realized from the sale or other disposition. The proceeds of the
sale shall be distributed as follows:
(i) Payment of the Government's expenses incurred incident to the
forfeiture and sale, including court costs and storage charges, if any;
(ii) Payment to the petitioner of an amount up to that person's
interest in the property;
(iii) Payment to the Postal Service Forfeiture Fund of all other
costs and expenses incident to the forfeiture;
(iv) In the case of victims, payment of any amount up to the amount
of that person's loss; and
(v) Payment of the balance remaining, if any, to the Postal Service
Forfeiture Fund.
(3) Trustees and other assistants. As a matter of discretion, the
Ruling Official, with the approval of the Chief Postal Inspector, may
use the services of a trustee, other Government official, or appointed
contractors to notify potential petitioners, process petitions, and
make recommendations to the Ruling Official
[[Page 25609]]
on the distribution of property to petitioners. The expense for such
assistance shall be paid out of the forfeited funds.
(4) Other agencies of the United States. Where another agency of
the United States is entitled to remission or mitigation of forfeited
assets because of an interest that is recognizable under this part or
is eligible for such transfer pursuant to 18 U.S.C. 981(e)(6), such
agency shall request the transfer in writing, in addition to complying
with any applicable provisions of paragraphs (c) through (e) of this
section. The decision to make such transfer shall be made in writing by
the Ruling Official.
(5) Financial institution regulatory agencies. A Ruling Official
may direct the transfer of property under 18 U.S.C. 981(e) to certain
Federal financial institution regulatory agencies or an entity acting
in their behalf, upon receipt of a written request, in lieu of ruling
on a petition for remission or mitigation.
(6) Transfers to foreign governments. A Ruling Official may decline
to grant remission to any petitioner other than an owner or lienholder
so that forfeited assets may be transferred to a foreign government
pursuant to 18 U.S.C. 981(i)(1); 19 U.S.C. 1616a(c)(2); or 21 U.S.C.
881(e)(1)(E).
(7) Filing by attorneys. (i) A petition for remission or mitigation
may be filed by a petitioner or by that person's attorney or legal
guardian. If an attorney files on behalf of the petitioner, the
petition must include a signed and sworn statement by the client-
petitioner stating that:
(A) The attorney has the authority to represent the petitioner in
this proceeding;
(B) The petitioner has fully reviewed the petition; and
(C) The petition is truthful and accurate in every respect.
(ii) Verbal notification of representation is not acceptable.
Responses and notification of rulings shall not be sent to an attorney
claiming to represent a petitioner unless a written notice of
representation is filed. No extensions of time shall be granted due to
delays in submission of the notice of representation.
(8) Consolidated petitions. At the discretion of the Ruling
Official in individual cases, a petition may be filed by one petitioner
on behalf of other petitioners, provided the petitions are based on
similar underlying facts, and the petitioner who files the petition has
written authority to do so on behalf of other petitioners. This
authority must be either expressed in documents giving the petitioner
the authority to file petitions for remission, or reasonably implied
from documents giving the petitioner express authority to file claims
or lawsuits related to the course of conduct in question on behalf of
these petitioners. An insurer or an administrator of an employee
benefit plan, for example, which itself has standing to file a petition
as a ``victim'' within the meaning of paragraph (b)(22) of this
section, may also file a petition on behalf of its insured or plan
beneficiaries for any claims they may have based on co-payments made to
the perpetrator of the offense underlying the forfeiture, or the
perpetrator of a ``related offense'' within the meaning of paragraph
(b)(20), if the authority to file claims or lawsuits is contained in
the document or documents establishing the plan. Where such a petition
is filed, any amounts granted as remission must be transferred to the
other petitioners, not the party filing the petition; although, as a
matter of discretion, the Ruling Official may use the actual petitioner
as an intermediary for transferring the amounts authorized as a
remission to the other petitioners.
Sec. 233.10 [Removed and Reserved]
0
5. Section 233.10 is removed and reserved.
Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
[FR Doc. 2012-10271 Filed 4-30-12; 8:45 am]
BILLING CODE 7710-12-P